Terms and Conditions

1. Background

Bexprt is committed to conducting our business in accordance with all applicable laws, rules and regulations and the highest ethical standards.

“General Terms and Conditions” are to be applied to all Bexprt contractual agreements, across all Bexprt Business Units (e.g. both Telecom Business Unit and Cloud Business Unit). Any contracted party has the right to a copy of this document should they request it.

2. Interpretation

2. In these conditions:

“Bexprt” means Bexprt Limited (Company registration no 11262575) whose registered office address is 220 Wharfdale Road, Winnersh, RG41 5TP and all group companies local nationally and internationally wholly or partially owned by Bexprt Limited.

“Bexprt Policies” means all Policies Bexprt comply with updated regularly and available on request.

“Client” means the business or individual placing a Purchase Order with Bexprt.

“Cloud Solution Provider (CSP)” means where Bexprt resells (i) AWS licencing and software subscriptions, (ii) Google Cloud licencing and software subscriptions, (iii) licencing and software subscriptions for any other Cloud Solution Provider. [Bexprt also resells licencing and software subscriptions for ISVs and other Partners.]

“Cloud Solution Provider Billing” means the process of invoicing the Client for all Bexprt supplied CSP subscription licences. Dependant on the licence type this will be monthly in arrears or 12-months in advance.

“Cloud Solution Provider Payment” means the mandatory Client Direct Debit (DD) payment mechanism for all Bexprt supplied CSP subscription licences. “Commencement Date” means the date (a) where an Order Confirmation is sent; (b) a Statement of Work is agreed and signed or (c) the date the Goods or Services are first delivered or supplied to the Client, whichever is the earlier.

“Completion” means the fulfilment of a Client’s Purchase Order by Bexprt.

“Confidential Information” means data and any information (or copy or part thereof) relating to a party’s proprietary, legal, business or technical matters, including but not limited to Intellectual Property Rights, financial information, operational data, business plans, employee and asset details, lists of Clients and all associated Client details, marketing and product plans, software or information ascertainable by the inspection or analysis of samples, whether disclosed in writing, orally or by any other means to one party (“the Receiving Party”) by the other party (or by any third party on its behalf) (“the Disclosing Party”), before or after the date of the Commencement Date.

“Consultancy Services” means project based professional services provided on a time and materials basis unless stated otherwise.

“Contract” means the Client’s Purchase Order and Bexprt’s acceptance of it under clause 3 subject to these conditions.

“Data Protection Legislation” means all applicable Law about the processing of Personal Data and privacy as amended from time to time, including (i) the Data Protection Act (DPA) 2018 (ii) amendments to the DPA 2018 made by regulations under the  European Union (Withdrawal) Act 2018(iv), (iii) the Electronic Communications Data Protection Directive 2002/58/EC, (iv) the Privacy and Electronic Communications (EC Directive) Regulations 2003 and all applicable laws and regulations relating to processing of Personal Data and privacy, including where applicable the guidance and codes of practice issued by the Information Commissioner.

“DPA” 2018 means Data Protection Act 2018.

“Delivery” means the date when the Goods or Services are delivered to the Client or if the Client refuses to take delivery of the Goods or Services then the date that Bexprt informs the Client that the Goods or Services are ready for delivery.

“Developed IPR” has the meaning that all IPR in the Services, the Documentation or otherwise arising from or created, produced or developed by Bexprt and the Workers (whether alone or jointly with others) under or in the course of the Contract wherever in the world enforceable, including without limitation all right, title and interest in and to the Services and Documentation.

“Documentation” means all materials or products produced by Bexprt (however recorded) including designs, plans, instructions and descriptions, test results and training material to be supplied with the Services.

“Expenses” means any business-related costs incurred as part of the delivery of Bexprt Consultancy or Managed Services. Typical Expense costs relate to travel, accommodation and sustenance.

“Fair Use Policy” means the limitation of usage relating to a Managed Services contract as described in the respective Service Level Agreement document agreed between the parties.

“Force Majeure” means any circumstances beyond the reasonable control of Bexprt, including, but not limited to, acts of God, riots, war or armed conflict, acts of terrorism, acts of government, local government or regulatory bodies, fire, flood or any disaster, strikes or industrial disputes, cyber attack, failure of a utility service or transport network, storm or adverse weather conditions, failure or default of suppliers or sub-contractors.

“Goods” means any hardware, Third Party Software and other goods, including Consultancy Services, Managed Services, Products or Solutions supplied by Bexprt to the Client.

“Intellectual Property Rights (IPR)”means all right, title and interest in and to the Services (including any deliverables) and all copyright, patent, trademark, design rights (in each case whether registered or unregistered) and all documents, data, drawings, specifications, computer programs, source code, object code (Software), know how, network designs, notes, sketches, drawings, reports, improvements, modifications, scripts or other items relating thereto.

“Invoice Charge” means the total amount payable by the Client to Bexprt for the supply of Goods and/or Services and excluding delivery and freight costs, VAT and other taxes which shall be added at the relevant charge and excluding any discretionary or additional fees entitled to be charged in accordance with these Conditions.

“Lender” means a Bexprt recommended partner providing direct financial lending and or leasing services to a Client for the provision of hardware product, services and Goods.

“Managed Services” means contracted, annuity and service level based fixed term agreements for Bexprt to provide support and management services.

“Partner Recognition Scheme” means any Partner (eg AWS, Google Cloud, Ribbon Communications etc) funding or fees allocated to Bexprt in relation to a specific Client and or set of deliverables. Some Partner Funding and fees include Client specific conditions and obligations. Mainly, in the absence of Bexprt payment made directly by the Partner, the Client is liable to pay the fees directly, see clause 9.7.

“Personal Data” means any information relating to an identified or identifiable natural person.

“Pre-existing IPR” means all Intellectual Property Rights of Bexprt existing prior to the Commencement Date or which arise or are developed otherwise than as a direct result of providing the Services to the Client.

“Project Closedown Document (PCD)” means a mandatory document when Bexprt Consultancy Services are engaged providing all necessary detail for the Client to approve project deliverables.

“Project Closedown Process” the process of system checking signed by Bexprt at the completion of any project.

“Project Start-up Document (PSD)” means a mandatory document where Bexprt Consultancy Services are engaged providing all necessary detail to prepare and deliver the project.

“Purchase Order” means a Client’s request for the supply of the Goods or Services including the acceptance of a Bexprt quotation, a Client’s instruction to proceed with the supply of Goods or Services or any other confirmation from the Client to proceed with a Purchase Order which is accepted by Bexprt.

“Purchase Order Confirmation” means Bexprt’s written acknowledgement of a Client’s Purchase Order and that Bexprt Terms and Conditions are accepted by the Client and take precedence.

“Services” means the services supplied by Bexprt to the Client under a Purchase Order or Statement of Work or Proof of Concept.

“Service Levels” means the levels of service defined in the Bexprt Service SLA document.

“Software as a Service” (SaaS) means Bexprt developed software solutions provided on a chargeable subscription SaaS basis. All Bexprt SaaS solutions are protected by Bexprt IPR and require a separate Bexprt SaaS Subscription Agreement.

“Standard Working Day” means (i) a standard working day between Monday to Friday, (excluding any UK bank holidays) and between the hours of 09:00 to 17:30 (UK timezone) allowing 1 hour for a lunch break, or (ii) a standard working day and standard working hours for the customer invoice country or delivery country or project country.

“Statement of Work (SOW)” means a statement of work (if any) signed by the Parties under which Bexprt shall provide Goods and/or Services to the Client.

“Test Execution Plan (TEP)” means a mandatory document where Bexprt Services are engaged providing all necessary detail of tests completed successfully for the Client to approve.

“Third Party Software” means the software licensed to the Client by a third party and which comprises part of the Goods.

“Time and Materials (T&M)” means the default commercial and invoicing model where Bexprt provides Bexprt Consultancy and Managed Service day delivery.

“Workers” means an employee, agent, subcontractor or officer of Bexprt or a person contracted and provided by Bexprt to the Client.

“Working Days” a day when banks in the City of London are open for business. If the project customer invoice country or delivery country or project country is not the UK, then this shall be defined in the contract.

2.2 Clause headings

Clause headings in these conditions are for reference only and do not affect its construction or interpretation; “including” and “includes” shall be understood to mean “includes without limitation”. Words importing one gender include the other gender and words importing the singular include the plural and vice versa. Words of a technical nature shall be construed in accordance with general terminology in the computer industry in England.

2.3 These conditions shall:

(a) Apply to and be incorporated in the Contract; and
(b) Prevail over any inconsistent terms or conditions including those contained in or

referred to in the Client Order, confirmation of order, specification or implied by law,

trade, custom, practice or course of dealing.

3. Delivery and acceptance

3.1 General:

3.1.1. Quotations are only valid in writing for the specified period. If unspecified the quotation shall be valid for 30 Standard Working Days.

3.1.2. Purchase Orders constitute an offer by the Client to purchase the Goods/Services subject to these conditions. The Client must ensure that its Purchase Order is accurate. Purchase Orders are only binding when accepted by Bexprt in a written Order Confirmation or, if earlier, Bexprt commences the Services or supplies the Goods or otherwise notifies the Client that such Goods or Services are available for delivery (as applicable).

3.1.3. The Client must check the Order Confirmation and notify Bexprt of any error immediately in writing otherwise the details stated in the Purchase Order Confirmation shall be deemed to form part of the Contract.

3.1.4. Bexprt reserves the right with the Client consent to change Goods or Services where required to an alternative of equivalent functionality and performance.

3.1.5. All delivery dates or periods agreed or stated are approximate only. Bexprt shall not be liable whatsoever for any loss or damage sustained by the Client as a result of Bexprt’s failure to deliver by such date. If the Client refuses delivery without Bexprt’s agreement, it must reimburse Bexprt for any consequential expenses, loss or damages. Risk in any Goods and / or Services passes to the Client upon Delivery.

3.1.6. Delivery and invoicing (part invoice) by instalments may be made by Bexprt as detailed at clause 4.3.

3.1.7. Where Bexprt is required to stage the delivery of any Goods or Services over a period of more than 10 days the cancellation fee at clause 12 shall apply from the date of the first delivery up to and including the date of the final delivery.

3.2 Services:

3.2.1. The provision of Bexprt Consultancy Services will be agreed and scheduled with the Client subject to 3.1.5 above.

3.2.2. Bexprt Consultancy Services will be scheduled with the Client and once scheduled the cancellation fee at clause 12.2 shall apply to any cancellations or alterations requested by the Client.

3.2.3. Bexprt Consultancy Services will be deemed to have been accepted by the Client once signed off using the Project Closedown Process.

3.2.4. The provision of Bexprt Managed Services will be provided in line with the support contract start and end dates. These Services will be deemed accepted unless disputed by the Client in writing within 7 days of the date on which the event giving rise to the dispute took place.

3.3 Goods:

3.3.1. Title to any Goods or any part of the Goods will pass to the Client on receipt by Bexprt of full payment (in cleared funds) in respect of the Invoice Charge and any other amounts due to Bexprt by the Client on any account whatsoever. Risk in any Goods will pass to the Client upon Delivery and the Client must insure against all risks for the full reinstatement value of the Goods and store the Goods separately and must not modify or sell them. Bexprt may sue for the Invoice Charge and any loss or damage to the Goods until such time as title has passed and reserves the right to enter the Client’s premises and repossess the Goods in relation to a breach of this clause.

3.3.2.  When the Client receives the Goods, it must inspect them for any defects or non- conformity and notify Bexprt within five (5) working days from the Delivery of the Goods, after which the Client will be deemed to have accepted the Goods.

3.3.3.  If Bexprt agrees to install the Goods the Client shall in accordance with Bexprt’s instructions prepare its premises and IT equipment or networks prior to delivery of Goods or provision of any Services, including power and communications lines and shall assist Bexprt to unpack and place the Goods on the premises and provide Bexprt with reasonable access to the Goods and equipment.

3.3.4.  Claims for non-delivery of Goods must be made in writing to Bexprt within five (5) working days from the date of Invoice.

3.3.5.  If the Client fails to take delivery of the Goods or fails to give Bexprt adequate delivery instructions in its Purchase Order then, without prejudice to any other right or remedy available, Bexprt may without liability to the Client: (i) store the Goods (at the Client risk and expense) until actual delivery and charge the Client for the reasonable costs thereof, including insurance costs; or (ii) terminate the Purchase Order forthwith and resell the Goods.

3.3.6.  Bexprt shall communicate a delivery date for any Goods in line with information provided by the Bexprt third party supplier or vendor. If this date changes or is delayed due to supplier or vendor issues, then Bexprt will not be held liable whatsoever.

4. Price and payment

4.1.  Price lists do not constitute an offer by Bexprt to the Client.

4.2.  Subject to any contrary provision in the Purchase Order or Statement of Work Bexprt reserves the right with the Client consent to increase or vary a quoted price or the Invoice Charge in accordance with any increase or variance in its own costs including costs of materials, labour, services, expenses, transport or changes in exchange rates between the date of the Purchase Order and the Delivery and the Client agrees to pay such additional charges without dispute.

4.3.  Bexprt reserves the right to issue invoices based on:

(a)  End of Week for Bexprt Consultancy Services, default; or

(b)  End of Month for Bexprt Consultancy Services, where applicable; or

(c)  End of Project for Bexprt Consultancy Services, where applicable;

(d)  Twelve (12) months in advance for Bexprt Managed Service contracts;

(e)  Date of shipment for Bexprt Product supply.

(f)  Twelve (12) months in advance for Bexprt Software as a Service (SaaS) subscriptions.

(g)  Monthly in arears strictly by Direct Debit for Cloud Solution Provider (CSP) billing and or invoices.

4.4.  Payment including cleared funds is due strictly within thirty (30) days from the date of invoice.

4.5.  If payment is not received within thirty (30) days of the invoice being submitted Bexprt reserves the right:

(a)  to claim interest at the rate applicable at the time and commercial debt recovery costs in accordance with late payment legalisation, including the Late Payment of Commercial Debts (Interest) Act 1998 as amended from time to time and;

(b)  suspend with immediate effect the delivery of further Goods, Services or Subscriptions.

(c) apply penalty of 2% for each week of delay for the overdue invoices from invoice due date capped to 15% of the contract value. Suppliers, partners or customers have to be notified by a form of escalation warning letter by the contract violation and penalty application beforehand by 14 days.

4.6.  Where any payment remains overdue for more than twenty (20) days Bexprt reserves the right to cancel any unfulfilled portion of the Purchase Orders or Statement of Work without prejudice to any claim or right Bexprt might otherwise have.

4.7.  Bexprt reserves the right to require payment of the Invoice Charge in stages at its discretion.

5. Working hours

5.1.  Bexprt shall undertake the Services during Standard Working Days.

5.2.  All Services provided by Bexprt during the Standard Working Days shall be charged at Bexprt’s standard charging rate as outlined in the Purchase Order or Statement of Work. If no such rates are set out, then Bexprt’s standard charge out rates as set out in its current price list shall apply.

5.3.  Any Consultancy Services agreed to be provided by Bexprt outside of the Standard Working Days shall attract at a discretionary uplift on and in addition to Bexprt’s standard charging rate such uplift to be charged at a percentage of the standard charging rate. The current Bexprt overtime rates are:

5.3.1.  Weekday 1.3 times standard/agreed rate

5.3.2.  Saturday 1.5 times standard/agreed rate (or 1st day of weekend where “weekend” is different to the UK for the customer invoice country or delivery country or project country)5.3.3.  Sunday 2.0 times standard/agreed rate (or 2^nd day of weekend where “weekend” is different to the UK for the customer invoice country or delivery country or project country)

5.3.4.  Bank Holiday 3.0 times standard/agreed rate (or National Holiday for the customer invoice country or delivery country or project country, where the activity is outside the UK).

5.4. Where the Client has purchased Out of Hours (OOH) as part of a Managed Service contract then Bexprt Working Hours are on a 24 hour as needs basis.

6. Bexprt Consultancy Services (BCS)

6.1. Bexprt will take every care to arrange and agree consultancy dates with the Client. Once these dates are agreed and confirmed by Bexprt the Client will be bound by the cancellation clause 12.2. Where Bexprt has agreed a discounted Consulting rate for the purchase of volume Consulting days the following clause shall apply:

6.1.1.  Volume consultancy days will be agreed based on the total number of days and the expected timeframe for delivery of the days. Unless otherwise agreed all volume, consultancy days must be used within twelve (12) months from the date of Purchase Order or Statement of Work.

6.1.2.  Client unplanned project delays. A Client unplanned project delay incurs due to circumstances, events or Client decisions that will have a material, contractual, timescale or financial impact to the agreed project. The unplanned element is defined by the amount of time the Client became aware of the potential delay and the time taken to communicate this to Bexprt, in this context the time period is set at forty-eight (48) hours. Delay notifications will only be accepted in writing (electronic mail) addressed to the Bexprt Engagement Manager or Technical Lead. Bexprt will take up to 24 hours to review the delay and any associated impact, change, cost or consequence.

6.1.3. Client planned project delays. A Client planned project delay incurs due to circumstances, events or Client decisions that will have a material, contractual, timescale or financial impact to the agreed project. The planned element is defined by the amount of time the Client became aware of the potential delay and the time taken to communicate this to Bexprt, in this context the time period is set at ten (10) Working Days. Delay notifications will only be accepted in writing (electronic mail) addressed to the Bexprt Engagement Manager or Technical Lead. Bexprt will take up to 48 hours to review the delay and any associated impact, change, cost or consequence.

6.2. Bexprt shall automatically invoice for any unused Consultancy days on the 12-month anniversary date from the original Purchase Order or Statement of Work.

6.3. In the instance where a Purchase Order or Statement of Work has not been issued by the Client or received the above clauses still apply from the date on which the first Consultancy Day was delivered.

7. Bexprt Managed Services (BMS)

7.1. Where a Client has a Managed Services contract and has committed to renew the contract then it is required for Bexprt to receive a Purchase Order one (1) month prior to the contract expiry date.

8. Intellectual Property Rights (IPR)

8.1. All Pre-existing IPR will vest in and remain absolutely the property of Bexprt and nothing in these conditions shall confer any rights on the Client in respect of such Pre-existing IPR.

8.2. The Client acknowledges and agrees that all Developed IPR in the Services, shall immediately upon creation or performance vest in and shall be and remain the sole and exclusive property of Bexprt. The Client hereby irrevocably and unconditionally assigns to Bexprt and shall ensure that the Client other officers, employees, agents and contractors assign to Bexprt, all right, title and interest in and to the Developed IPR whether existing or future.

8.3. Without prejudice to clause 8.2 above, Bexprt grants the Client a limited, internally transferable, non-exclusive licence to such Pre-existing IPR and Developed IPR as is strictly necessary for the use of the Services and/or Documentation as contemplated under the Contract. Notwithstanding the forgoing and for the avoidance of doubt the Client shall only be entitled to transfer, transmit, distribute or disclose such Developed IPR and or Pre-existing IPR internally or to other companies in its group (as defined by the Companies Act 2006) and such IPR shall be treated as Confidential Information.

8.4. The terms and obligations imposed by this Clause 8 shall survive the expiry or termination of the Contract for any reason.

8.5. The Client agrees, at Bexprt’s request and expense, to take all such actions and execute all such documents as may in Bexprt’s reasonable opinion be necessary to give effect to the assignments and waivers described in Clause 8.3 and to enable Bexprt to obtain, defend or enforce its rights in the IPR (including without limitation by procuring from the Workers and its other employees, agents and contractors all requisite assignments and waivers), and shall not do or fail to do (and shall use its best endeavours procure that to employees, workers, agents, officers or sub-contractors shall not do or fail to do) any act which would or might prejudice Bexprt rights under this Clause 8.

9. Client obligations

9.1. The Client shall:
(a) Co-operate with Bexprt in all matters relating to the Services and appoint a project manager, who shall have the authority to contractually bind the Client on matters relating to the Services.
(b) Provide in a timely manner such access to the Client’s

(i) premises (including site access),

(ii) equipment and data,

(iii) internet connectivity and necessary bandwidth

(iv) phone access,

(v) secure remote access to systems and data,

(vi) suitable office accommodation and office facilities (if undertaken “on site”),

(vii) and other facilities,

as is reasonably required, for the duration of the contract including access out of hours, as is requested by Bexprt.
(c) Provide in a timely manner such information as Bexprt may request, and ensure that such information is accurate in all material respects; and
(d) Be responsible (at its own cost) for preparing the relevant premises for the supply of the Services and or Goods.
(e) Comply with any prerequisite obligations specified by Bexprt in any Project Start up Document, Scope of Work or otherwise.
9.2. If Bexprt’s performance of its obligations under the Contract is prevented or delayed by any act or omission of the Client or the Client’s agents, sub-contractors or employees, the Client shall in all circumstances be liable to pay to Bexprt on demand all reasonable costs, charges or losses sustained or incurred by it (including, without limitation, any direct consequential losses, loss of profit and loss of reputation, loss or damage to property, injury to or death of any person and loss of opportunity to deploy resources elsewhere), subject to Bexprt confirming such costs, charges and losses to the Client in writing.

9.3. If the Client wishes to change the scope of the Services, it shall submit details of the requested change to Bexprt in writing.

9.4. If the Client requests a change to the scope or execution of the Services, Bexprt shall, within a reasonable time, provide a written estimate to the Client of:

(a) the likely time required to implement the change;
(b) any variations to Bexprt’s charges arising from the change;
(c) the likely effect of the change on the Services or Scope of Works;
(d) any other impact of the change on the terms of the Contract.
9.5. If the Client wishes Bexprt to proceed with the change, Bexprt has no obligation to do so unless and until the parties have agreed in writing on the necessary variations to its charges, the scope of works and any other relevant terms of the Contract to take account of the change.

9.6.  If Bexprt requests a change to the scope of the Services, the Client shall not unreasonably withhold or delay consent to it.

9.7.  Where the Partner Recognition Scheme is applied then the Client agrees if the Partner does not pay Bexprt for compliant deliverables then the Client will raise a Purchase Order for the same value and pay Bexprt directly.

9.8 In the event of a potential or actual breach of confidential information, or a security breach (including cyber security breach) relating to Bexprt, or the work being undertaken by Bexprt. or Bexprt staff, the Client shall inform Bexprt immediately, and take all necessary steps to minimise the impact to Bexprt, to Bexprt staff, and the project, and comply with all necessary laws and regulations.

10. Confidentiality

10.1.  Neither party may use or disclose the other party’s Confidential Information or such information reasonably obvious to be confidential (including but not limited to that information contained in any proposal) except solely in the performance of its own obligations or rights provided under these terms or as provided in clause 10.2.

10.2.  Either party may disclose the Confidential Information of the other if:

10.2.1.  required to do so by law or any regulatory authority provided that where lawful that party promptly notifies the disclosing party of such requirement and co-operates with the disclosing party regarding the manner scope or timing of such disclosure or any action that the disclosing party may take to challenge the validity of any such requirement; and

10.2.2.  any other person whose duties reasonably require such disclosure for the performance of the Contract on the strict condition that each such person to whom such disclosure is made is informed of the obligation of confidentiality under these conditions and complies with those obligations as if they were bound by them.

10.3. Bexprt is entitled to use the Client’s name and logo for any reasonable marketing purposes (eg website carousel of clients). Bexprt is entitled to use the Client’s name and project details (eg for case study documents) with the Client consent.

11. Non-solicitation

11.1. During the term of the Contract and for a period of (a) six (6) months after its expiry or termination or (b) if later, the last day of provision of the Services, that the Client will not without prior written consent directly or indirectly solicit or offer employment or engagement to any Worker who at the time of such action or during a period of twelve (12) months immediately preceding such action was directly involved in the provision of Services.

12. Cancellations

12.1 Goods:

12.1.1. No Purchase Order for Goods which has been acknowledged by Bexprt may be cancelled by the Client except with the written agreement of Bexprt and provided always that the Client indemnifies Bexprt in full against all loss (including loss of profit), costs, damages, charges or expenses incurred by Bexprt as a result of such cancellation.

12.2. Cancellation of Bexprt Consultancy Services:

12.2.1.  If the Client wishes to cancel a Purchase Order or Statement of Work or any part of it for any reason on five (5) or less working days before the specified delivery date Bexprt reserves the right to charge a cancellation fee at its discretion of 100% of the Invoice Charge.

12.2.2.  If the Client wishes to cancel a Purchase Order or Statement of Work or any part of it for any reason less than ten (10) working days and no more than five (5) working days before the specified delivery date Bexprt reserves the right to charge a cancellation fee at its discretion of 50% of the Invoice Charge.

12.2.3.  If the Client wishes to cancel the Purchase Order or Statement of Work or any part of it for any reason on ten (10) or more working days in advance of the specified delivery date then Bexprt reserves the right to charge the Client for any loss and expense incurred by Bexprt as a result of such cancellation.

12.2.4.  A Purchase Order or Statement of Work will only be deemed to be cancelled where Bexprt receives written notice of such cancellation detailing those parts of the Purchase Order to be cancelled and this must be sent to Bexprt’s registered office address.

12.2.5.  The parties agree that the cancellation fees stated in this clause 12.2 are a genuine estimate of the losses that Bexprt will incur in the event of a cancellation by the Client.

12.3. Cancellation of Bexprt Managed Services:

12.3.1.  If the Client wishes to cancel a Contract for Managed Services or any part of it for any reason Bexprt will require a minimum of three (3) months’ notice. The three (3) months’ notice period will be charged at the full contract value.

12.3.2.  A Purchase Order for Managed Services will only be deemed to be cancelled where Bexprt receives written notice of such cancellation detailing those parts of the Purchase Order to be cancelled and this must be sent to Bexprt’s registered office address.

12.3.3.  Notwithstanding the Client cancellation of the Managed Services and clause 12.3.1. above any amounts due by the Client to Bexprt under the Contract for Managed Services shall remain payable for the entire duration of the term as set out in the Contract. If a Client has paid for Managed Services in advance no refunds shall be given where a Contract for Managed Services is terminated part way through the fixed term set out in the Contract.

13. Warranties

13.1. Goods and Services:

13.1.1.  The Services included in the supply or provision of Goods or Services will be provided with reasonable care and skill.

13.1.2.  Unless otherwise agreed in writing the Goods are sold with the benefit of the manufacturer’s warranty only (where available) and the Client’s only remedy for breach of that warranty is as stipulated in the relevant manufacturer’s terms and conditions.

13.1.3.  The warranties set out in this clause 13 are in place of all other express or implied warranty including any implied warranties of satisfactory quality and fitness for a particular purpose. Bexprt does not warrant that the Goods or Services will meet the Client’s requirements or that the operation of the Goods will be uninterrupted or error free. No oral or written communications by or on behalf of Bexprt shall create a warranty or in any way increase the scope of the warranties given by Bexprt.

13.1.4.  The warranties given under this clause 13 do not apply to Goods or any part thereof which have:

(a) been modified, altered, tampered or repaired in any way while in the Client’s possession custody or control other than in the ordinary course of installation effected in accordance with the installation manual; or

(b) been operated other than in accordance with the recommendations of Bexprt or the manufacturer not been maintained or used in accordance with the manufacturers guidelines or good industry practice.

13.2. Services:

13.2.1. Where Bexprt Consultancy Services are engaged, delivered and accepted Bexprt will warranty the Consultancy Services provided for a period of fourteen (14) days post Client acceptance. This relates specifically to deliverables within the Purchase Order, Statement of Work or Project Start-up Document only.

14. Returns

14.1 Goods:

14.1.1. Bexprt retains the right at its sole discretion whether to accept the return of any defective Goods or whether to repair any Goods or issue a credit note in respect thereof.

14.1.2. If Bexprt agrees to accept returned Goods such Goods must be complete, unused and in resalable condition along with the original packaging manuals and accessories unless otherwise agreed.

14.1.3. Where Bexprt agrees to accept Goods returned as a condition of the manufacturer’s warranty the Client must request a Returns Code from Bexprt and this must be marked clearly on the returned Goods.

14.1.4. The Client shall be responsible for all cost’s incidental to the return of the Goods including insurance and carriage and such returned Goods shall remain the risk of the Client during transit. Bexprt does not accept liability for any Goods lost or damaged during transit. The Client shall be responsible for proving safe delivery.

14.1.5. On receipt of the returned Goods Bexprt shall test the Goods against the stated fault if any. If no fault is located and the Goods are in full working order it shall be returned to the Client at the Client’s expense.

14.1.6. Returned Goods found to be defective which are consequently replaced by Bexprt shall become the absolute property of Bexprt.

14.1.7. Bexprt shall have no liability to accept the return of Goods (or to otherwise repair or alter a credit note in respect thereof) where Goods have been made use of following notification to Bexprt that such Goods are defective.

15. Freedom of Information (FOI)

15.1. These conditions are entirely without prejudice to the obligations of the Client under the provisions of the Freedom of Information Act 2000 (including any subordinate legislation made under such Act and any Codes of Practice and/or Guidance issued by the Information Commissioner or any relevant Government Department) (“the Act”) and any disclosure of Confidential Information by the Client pursuant to an obligation under the Act shall not be a breach of these conditions.

16. Limitation of liability – Bexprt

16.1. The following provisions set out the entire financial liability of Bexprt (including without limitation any liability for the acts or omissions of its employees, agents and sub- contractors) to the Client in respect of:

16.1.1. Any breach of the Contract howsoever arising;

16.1.2. Any use made by the Client of the Services, the Goods, the Documentation or any part of them; and

16.1.3. Any representation, misrepresentation (whether innocent or negligent), statement or tortious act or omission (including without limitation negligence) arising under or in connection with this Agreement.

16.2. All warranties, conditions and other terms implied by statute or common law are, to the fullest extent permitted by law, excluded from the Contract.

16.3. Nothing in these conditions excludes the liability of Bexprt:
(a) for death or personal injury caused by Bexprt’s negligence;
(b) for fraud or fraudulent misrepresentation;
(c) for any other matter for which it would be illegal to try to exclude liability for.
16.4. Subject to conditions 12.2 and 12.3
(a) Neither Bexprt nor the Client shall in any circumstances be liable, whether in tort

(including without limitation for negligence or breach of statutory duty howsoever

arising), contract, misrepresentation (whether innocent or negligent) or otherwise for: (i) loss of business; or

(ii) depletion of goodwill or similar losses; or (iii) loss of anticipated savings; or
(iv) loss of goods; or
(v) loss of contract; or

(vi) loss of use; or
(vii) loss or corruption of data of information; or
(viii) any special or pure economic loss, costs, damages, charges or expenses.
(b) Bexprt’s total liability in contract, tort (including without limitation negligence or breach of statutory duty howsoever arising), misrepresentation (whether innocent or negligent), restitution or otherwise, arising in connection with the performance or contemplated performance of the Contract shall be limited to:

(i) the price actually paid by the Client for the Services in any one (1) year; or (ii) £50,000
Whichever is the lesser.

17. Limitation of liability – Client

17.1. The Client liability in contract (but not in respect of any indemnities), tort (including without limitation negligence or breach of statutory duty howsoever arising), misrepresentation, restitution or otherwise arising in connection with the Contract shall be limited to:

(a)  £50,000; or

(b)  the total Invoice Charge in respect of the Contract plus VAT  

whichever is the greater.

18. Data Protection Legislation

18.1. In circumstances where Bexprt obtains, uses or is required to disclose Personal Data about the Client in order that Bexprt may discharge the Services agreed between the parties and for other related purposes including updating and enhancing client records, analysis for management purposes an statutory returns, crime prevention and legal compliance then Bexprt agrees to comply with the requirements of the Data Protection Legislation in its entirety including but not limited to technical and organisational security measures, confidentiality, access requests and breach notification. The Client has the right under Data Protection Legislation, to the data Bexprt will hold.

19. Termination

19.1. Bexprt may terminate the Contract immediately by serving the other party with a written notice if:

19.1.1.  the Client commits any material breach of these conditions which if capable of remedy is not remedied within twenty-one (21) days of Bexprt providing the other with a written notice specifying the breach and requiring its immediate remedy; or

19.1.2.  a resolution is passed or a petition presented or an order made for winding up of the Client (except for the purpose of a bona fide reconstruction or amalgamation) or if an application is made for the appointment of an administrator or the Client becomes subject to an administration order or a receiver or administrative receiver is appointed over its property or assets, or it becomes insolvent or would be taken as insolvent under Section 123 of the Insolvency Act 1986 or is dissolved or otherwise threatens or ceases to carry on business.

19.1.3.  Bexprt reasonably believes the Client is about to experience any of the events above.

19.2.  Bexprt may terminate the Contract immediately by serving the Client with a written notice if the Client fails to pay any invoice as defined in clause 4.6.

19.3.  On termination of the Contract for any reason each party shall return or delete any of the other party’s Confidential Information and provide the other party with a written notice certifying compliance with sub-clause 10.2.

19.4.  Where the Client has subscribed to Bexprt Managed Services then notwithstanding termination of the whole Contract, the Client shall be liable to pay the charges for the entire term set out in the Contract and clause 12.3 shall apply accordingly.

20. Discrimination

20.1. Both Parties shall not unlawfully discriminate within the meaning and scope of the provisions of the Equality Act 2010 or any statutory modification or re-enactment thereof or any other Law relating to discrimination in employment.

21. Force Majeure

21.1.  Bexprt will not be in breach of these conditions or otherwise liable to the Client for any delay in the performance or any non-performance of any obligations under the Contract (and time for performance will be extended accordingly) if and to the extent that the delay or non-performance is owing to Force Majeure.

21.2.  If a Force Majeure event prevents a Party from performing its obligations under this Contract for more than thirty (30) consecutive days, the other Party may terminate this Contract with immediate effect by written notice.

22. Compliance with relevant requirements

22.1. Bexprt and the Client shall:

22.1.1.  comply with all applicable laws, regulations, codes and sanctions relating to anti-bribery and anti-corruption including but not limited to the Bribery Act 2010 (Relevant Requirements);

22.1.2. not engage in any activity, practice or conduct which would constitute an offence under sections 1, 2 or 6 of the Bribery Act 2010 if such activity, practice or conduct had been carried out in the UK;

22.1.3.  have and shall maintain in place throughout the term of the Contract its own policies and procedures, including but not limited to adequate procedures under the Bribery Act 2010, to ensure compliance with the relevant requirements will enforce them where appropriate;

22.1.4.  provide such supporting evidence of compliance as Bexprt may reasonably request.

22.1.5  Breach of this clause 22 (and all sub sections of that clause) shall be deemed a material breach.

22.1.6.  For the purpose of this clause 22 (and all subsections of that clause), the meaning of adequate procedures and foreign public official and whether a person is associated with another person shall be determined in accordance with section 7(2) of the Bribery Act 2010 (and any guidance issued under section 9 of that Act), sections 6 (5) and 6 (6) of that Act and section 8 of that Act respectively.

22.2 Bexprt and the Client shall:

22.2.1 comply with all applicable laws, regulations, codes and sanctions relating to Modern Slavery Act 2015 (relevant requirements)

22.2.2.  not engage in any activity, practice or conduct which would constitute an offence under the Modern Slavery Act 2015 (relevant requirements)

22.2.3.  have and shall maintain in place throughout the term of the Contract its own policies and procedures, including but not limited to adequate procedures under the Modern Slavery Act 2015 (relevant requirements), to ensure compliance with the relevant requirements will enforce them where appropriate;

22.2.4.  provide such supporting evidence of compliance as Bexprt may reasonably request.

22.2.5.  Breach of this clause 22.2 (and all sub sections of that clause) shall be deemed a material breach.

23. General

23.1. In addition to the Contract and related documents, these “General Terms and Conditions” set out the remaining elements of the agreement and understanding between the parties in connection with its subject matter. In particular, the Client acknowledges that these conditions supersedes any previous agreement between the parties and represents the entire understanding between the parties and the Client acknowledges and agrees that it has not entered into the Contract in reliance upon any representations, agreement, statements, replies to specific enquires made or alleged to have been made by Bexprt at any time provided that nothing in these conditions shall affect the liability of either party in respect of any misrepresentation warranty or condition that it makes fraudulently.

23.2.  These Conditions may not be amended modified varied or supplemented except by written agreement signed by or on behalf of both parties.

23.3.  Failure by either party to exercise or enforce any rights or the giving of any forbearance delay or indulgence will not be construed as a waiver of its rights under the Contract or otherwise.

23.4.  If any part of these conditions shall be found to be unlawful, void or voidable it shall be severed from the Contract and shall not affect the validity or enforceability of the remainder of these conditions.

23.5. Each party shall ensure that in the performance of its obligations under the Contract it will always comply with the Data Protection Legislation.

23.6. These conditions insofar as they have not been performed at or can take effect after shall remain in full force and effect notwithstanding Termination.

23.7. Notices under these conditions shall be by email, or in writing and delivered personally or sent by first class pre-paid recorded delivery to the other party’s registered office address or such other address as a party may from time to time specify. Notices sent in accordance with this clause 23.7 shall be deemed to be delivered forty-eight (48) hours (excluding Saturdays, Sundays and public holidays) after posting.

23.8. Nothing in these conditions shall confer on any third party any right or benefit under the provisions of the Contracts (Rights of Third Parties) Act 1999.

23.9. These conditions shall be interpreted and operated in accordance with the Law of England and the parties submit themselves to the jurisdiction of the English Courts.

24. Expenses

24.1. The Bexprt expense policy for charging the Client for costs incurred during the delivery of the Works is based on the following:

(a) Inclusive day rate incorporating a fixed and capped fee; or
(b) A capped expense fee separate to the day rate for 50% of the total amount of delivery days quoted, invoiced only when delivery occurs on Client site.

End.